Enforcement Models: Content and Context.

Abstract

Advocates have called for legal provisions that guarantee “a right to appeal any decision, any failure to provide information, or any other infringement of the right of access to information to an independent authority with the power to make binding and enforceable decisions, preferably an intermediary body such as an Information Commission(er) or specialist Ombudsman in the first instance with a further right of appeal to a court of law.” Though it is clear that there must be a right of appeal, scant analysis or scholarship has been done that reflects upon the specific cultural and political contexts that have guided enforcement model design and the conditions that are necessary for a system to satisfy this principle. This paper begins this necessary conversation by defining three distinct models for enforcing ATI legislation, the considerations applied in designing and selecting the models, and some of the key factors related to the proper functioning of the system, through the use of illustrative case examples. It does not serve as an exhaustive study of enforcement, nor does it comprehensively evaluate the functioning of the procedures in specific jurisdictions. Though this paper focuses on the influence of particular political, economic, or cultural contexts, it does not distinguish among high-, middle-, or low-income countries. Rather, it strives to present the variables present in shaping an enforcement system. The case examples cited tend to include middle-income countries with a relatively more mature political development. This will, of course, influence not only the choice of enforcement model, as discussed below, but also its success. Though, ultimately, evidence will likely support the advocates' proposition that an independent intermediary body with compulsory powers is the most desirable, this paper explores some of the contingencies that lead to this conclusion.